JAMES SCOTT ELLIS, APPELLANT,
v.
GALLOWAY'S INC., AMERICAN STATES INSURANCE, CARRIER # 1, RISCORP N/K/A ZENITH INSURANCE, CARRIER # 2, AND FCCI INSURANCE GROUP, CARRIER # 3, APPELLEES
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In a workers' compensation case, the appellate court reversed the Judge of Compensation Claims' decision that the statute of limitations had expired for a 1992 work injury, holding that later treatment in 1995 for a related repetitive trauma injury revived the limitations period for the earlier 1992 injury.
The two-year statute of limitations for the 1992 accident was revived upon treatment in 1995 because medical testimony established that the 1992 accident contributed to the 1995 need for treatment. Since the Petition for Benefits was filed within two years of the last remedial treatment for the 1995 accident, the statute of limitations had not expired for the 1992 injury.
[1] The statute of limitations for a workers' compensation claim may be revived by subsequent remedial treatment provided on account of a previous injury.
[2] A claimant must demonstrate that later treatment was provided on account of a previous injury for the statute of limitations to be revived.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the later treatment after the 1995 repetitive trauma accident revived the SOL for the 1992 accident”
Establishes the core holding that subsequent treatment can revive the statute of limitations for an earlier injury.
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Join FLexlaw to unlock all legal intelligenceJames Scott Ellis sustained three work-related injuries while employed by Galloway's, Inc.: in 1989, 1992, and 1995 (repetitive trauma). Medical testi…
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PER CURIAM.
In this workers’ compensation case, appellant had three dates of injury with the employer, Galloway’s, Inc. The judge of compensation claims (JCC) decided three issues involving the present claims: whether the statute of limitations (SOL) expired for a 1989 injury; whether the two-year SOL expired for a 1992 injury; and whether the one-year SOL expired for a 1995 repetitive trauma. See § 440.19(2), Fla. Stat. (Supp.1994) (stating the one-year SOL); § 440.19(l)(a), Fla. Stat. (1991) (stating the two-year SOL). The JCC found that the SOL had expired for all three dates of accident. Claimant does not challenge the JCC’s finding with regard to the 1989 accident, and competent, substantial evidence supports the JCC’s findings with regard to the 1995 accident.
In the order, the JCC acknowledged the medical testimony that the 1992 accident contributed to the 1995 need for treatment. The medical testimony supports such a finding. Accordingly, the later treatment after the 1995 repetitive trauma accident revived the SOL for the 1992 accident. See Bell v. Commercial Carriers, 603 So. 2d 683 (Fla. 1st DCA 1992). This is distinguishable from Betham v. City of Orlando, 556 So. 2d 412 (Fla. 1st DCA 1989), where the later treatment did not revive the SOL for an older injury because the claimant did not show that the later treatment was provided on account of any previous injury. Thus, the two-year SOL for the 1992 accident was revived upon treatment in 1995. See § 440.19(l)(a), Fla. Stat. (1991). Because the PFB was filed within two years of the last remedial treatment for the 1995 accident, the SOL had not expired with regard to the 1992 accident.
This case is REVERSED and REMANDED for further proceedings.
ERVIN, KAHN and POLSTON, JJ., concur.
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Medpartners/Diagnostic Clinic Med. Grp., P.A. v. Zenith Ins. Co., 23 So. 3d 202 (Fla. 1st DCA 2009)…January 3, 2002, was wholly related to the 1999 accident, not the 2001 accident. The JCC accepted this testimony, and based on this court’s decisions in Bell v. Commercial Carriers, 603 So. 2d 683 (Fla. 1st DCA 1992), and Ellis v. Galloway’s, Inc., 794 So. 2d 710 (Fla. 1st DCA 2001), concluded that Zenith, by providing treatment to Claimant after the 2001 accident, “revived” the statute of limitations on the 1999 claim administered by SRS. Analysis We begin our analysis by recognizing that section 440.42(4…1 / 2
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Borneisen v. Home Depot & Sedgwick Claims Mgmt. Servs., 917 So. 2d 361 (Fla. 1st DCA 2005)…ead of “remedial,” and therefore did not revive the statute of limitations. Despite the above findings, the JCC based her ruling upon an erroneous legal distinction between “remedial” and “palliative” treatment, construing Ellis v. Galloway’s Inc., 794 So. 2d 710 (Fla. 1st DCA 2001), as meaning that only “remedial” and not “palliative” treatment is capable of reviving the limitations period under section 440.19. No such distinction was created by Ellis. Ellis merely recognizes that “remedial” care is capable…
Authorities Cited
- Charlton Bell v. Commercial Carriers & Ryder Servs. Corp., 603 So. 2d 683 (Fla. 1st DCA 1992)
- Betham v. City OF Orlando & Cigna, 556 So. 2d 412 (Fla. 1st DCA 1989)